Monday, January 23, 2006

An article published in the current (January 2006) issue of the American Journal of Preventive Medicine, written by two attorneys at the Northeastern University School of Law, discusses the use of litigation as a public health strategy and draws upon the lessons learned from tobacco litigation to inform a discussion of the potential public health benefits of obesity-related litigation against the food industry (see: Alderman J, Daynard RA. Applying lessons from tobacco litigation to obesity lawsuits. Am J Prev Med 2006; 30:82-88).

The article concludes that "state lawsuits under consumer protection acts may be a distinct type of litigation that permits cases to focus on deceptive advertisements while avoiding complicated causation issues. Such lawsuits have the potential to be a useful tool to fight obesity... It is likely that litigation will be necessary to address the obesity problem as it was to address the dangers of tobacco. The best approach is to focus on public health lawsuits under consumer protection statutes... ."

Specifically, the article encourages lawsuits against the food industry based on the claim that they violate state consumer protection statutes by using deceptive marketing practices. According to the article: "Lawsuits based on consumer protection acts are much more likely to be effective. ... Marketing that makes non-nutritious food appealing to children could fall under the consumer protection statutes. State attorneys general could bring suits under consumer protection acts seeking injunctions against food companies and refunds to consumers for deceptive marketing practices."

The article implies that food companies have engaged in possibly fraudulent activity similar to the tobacco companies: "The [tobacco] documents revealed a blatant disregard for public health, such as an agreement among tobacco companies to conceal information about the health effects of cigarettes, and helped to turn public opinion against the industry. The food industry may be concerned that litigation could reveal similar documents or industry practices that would tarnish its public image."

The Rest of the Story

This article seemingly accuses the food companies of fraudulent or other unscrupulous activities similar to the tobacco industry without documenting a single unlawful activity in which these companies are engaging. Likewise, the article encourages lawsuits against the food industry without documenting any grounds for legal action.

It hardly seems meaningful to suggest that state consumer protection laws provide a basis for lawsuits against food companies without documenting just what it is that the companies are doing that violates these consumer protection laws.

One could just as easily, it seems, write an article suggesting that we should be pursuing lawsuits against auto manufacturers, hoping that secret documents are uncovered which reveal unscrupulous activity, but it seems unhelpful to me to be making such a suggestion without providing any documentation of any legally redressable wrongdoing.

In fact, the article documents only one thing that any food company has ever done that could be construed as violating consumer protection statutes: Kentucky Fried Chicken once aired an ad (which has subsequently been withdrawn) that apparently "featured fried chicken as a health food useful for people on a diet." But there is no documentation of any other misleading or deceptive advertising or any other behavior that would violate consumer protection statutes.

The article specifically recommends that the Attorneys General bring suits under consumer protection acts seeking injunctions against food companies for deceptive marketing practices. But the article does not document any ads or class of ads that are deceptive.

The article states that "marketing that makes non-nutritious food appealing to children could fall under the consumer protection statutes." But I'm not aware of any law that makes it illegal for companies to make their products appealing. That's what marketing is all about. What would be potentially in violation of consumer protection statutes would be if the companies made non-nutritious food appear nutritious to children. But the article makes no such documented claim.

Now I'm not in any way arguing here that the food companies have not been misleading or deceptive in their advertising or that they have not violated consumer protection statutes. I simply don't know. But what I am arguing is that if the article is going to suggest such lawsuits, it should probably first document what the deceptive or misleading advertising is.

I'm not saying there is no corporate wrongdoing by the food industry, but it seems not particularly helpful to suggest that there may be wrongdoing without providing the documentation.

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About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 25 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.